After federal agents raided his lawyer Michael Cohen’s office, current U.S. president and noted legal expert Donald Trump tweeted: “Attorney-client privilege is dead!“
This will be news to lawyers and legal scholars nationwide. What may be news to Trump and Cohen is that there are exceptions to attorney-client privilege, one of which applies to communications between an attorney and a client that are made in furtherance of a fraud or other crime. So, while FBI raids of lawyers’ offices are rare, they may be an indication of the type of information agents are seeking.
Which Docs Are Sought?
Cohen’s own attorney Stephen Ryan said the search warrants were executed by the office of the U.S. Attorney for Southern District of New York and sought documents related in part to Special Counsel Robert Mueller’s investigation. Mueller has been investigating allegations that Russian agents meddled in the 2016 presidential election, and may have had contact with Trump’s campaign.
The New York Times, on the other hand, is citing anonymous sources who say the targets of the raid were documents relating to payments made to two women — former Playboy model Karen McDougal and porn star Stephanie “Stormy Daniels” Clifford — in exchange for their silence regarding their relationships with Trump. Cohen previously acknowledged paying Clifford $130,000 as part of a nondisclosure agreement mere days before the 2016 presidential election. Ryan claimed some of the documents seized were privileged.
Why Aren’t They Privileged?
While attorney-client privilege does permit a client to prevent disclosure of communications between the client and his attorney, there are exceptions to the rule. Among the five requirements for a communication to be protected by attorney-client privilege is that the communication must have occurred for the purpose of securing a legal opinion, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime or in furtherance of fraud. Communications, even between a client and attorney, that fall under the crime-fraud exception are not privileged.
And the First Circuit recently ruled that all it takes for the crime-fraud exception to be triggered is an intent by the client to commit fraud or another crime, and a mere allegation of a fraud could be sufficient to destroy attorney-client privilege, if the communications in question were made at the time of an alleged fraud.
Whether fraud has been alleged against Trump (in this particular case) remains to be seen, but the FBI appeared pretty comfortable seizing privileged communications, so it’s a good guess they’re relying on one of the exceptions to attorney-client privilege.
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